The particularities of age discrimination before the ECJ and the ECtHR

Abstract

Should discrimination based on age be considered exceptional in light of other grounds for discrimination? This issue has been debated for decades. The article contributes to this enduring discussion by examining the particularities of the way age discrimination is addressed by European jurisdictions. This paper compares the prohibition of age discrimination within European Union (EU) Law and within the law of the European Convention on Human Rights (ECHR), with a particular focus on the case law of the European Court of Justice and of the European Court of Human Rights. Beyond the differences that may exist between the courts, the comparison emphasises two common traits. Firstly, both courts encounter difficulties in qualifying age discrimination, and when they do, they accept more readily justifications for age discrimination than any other prohibited ground. Secondly, there is an uncertainty from both courts about the group protected against age discrimination, if it even exists. The paper therefore concludes that age discrimination is treated in a distinctive manner in both EU law and the law of the ECHR, which is justified by the specific character of age as a ground of discrimination.